Opinion analysis: Wal-Mart’s two messages

Posted Mon, June 20th, 2011 2:02 pm by Lyle Denniston

Analysis

For tens of thousands of women who work now, or used to work, for the giant discount retailer, Wal-Mart Stores, the Supreme Court on Monday put out of their reach a nationwide, all-in-one lawsuit over claims of sex bias in the company’s 3,400 stores across the country. Each of those women, it appears, will have to complain on her own to federal officials, or file her own lawsuit.

For large companies in general, the ruling in Wal-Mart Stores v. Dukes, et al. (10-277) offered a second message: the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class-action claim. Only workers who have a truly common legal claim may sue as a group, the Court majority made clear — and, even that claim will require rigorous proof that every single worker suffered from exactly the same sort of bias. Sample statistics and anecdotes won’t do, it said.

The Court split 5-4 in shutting down, entirely, a class-action lawsuit against Wal-Mart that could have affected the legal claims of perhaps as many as 1 million women. The Court’s four most liberal members, including the three women Justices, dissented. The Court also ruled — unanimously — that the women could not bring a claim for backpay, as a remedy for discrimination, under the legal theory their lawyers had used. The ruling was based primarily upon how the Court interpreted a federal court rule — Rule 23. But there were overtones of constitutional protection for companies facing money claims in a class-action case, ensuring that they must be able to mount a full defense in trying to fend off such claims.

The main opinion, controlling both the 5-4 and 9-0 results, was written by Justice Antonin Scalia, the Court’s most dedicated skeptic about the class-action approach to litigation — a method that allows a large group of individuals, whose own claims may not be worth enough to justify a lawsuit, to join forces as “a class” to pursue grievances that all of them share. Almost certainly the most significant part of the new ruling was the stress it put on the Rule 23 demand that all of those in the class must have a “common” legal claim — in a workplace bias case, each must show, up front, that the bias they claim was targeted at each of them.

The claim that the Wal-Mart women made, as Justice Scalia summarized it at one point, is that Wal-Mart’s “corporate culture” institutionalized a bias against female workers, “thereby making every woman at the company the victim of one common discriminatory practice.” Thus focusing the case on Rule 23’s requirement of “commonality,” the Court decided that the Wal-Mart women’s lawsuit could not meet that standard. They were suing, the opinion said, “about literally millions of employment decisions at once.”

The lawsuit, the Court said further, lacked “some glue holding” its claims together, and that “glue” would be the actual reasons behind each of those decisions. Without that, it added, ” it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” There is, in this case, too wide a gap between an individual’s workplace bias grievance and the existence of a class of persons suffering exactly the same injury, according to the Court majority.

In order to bridge that gap, Justice Scalia wrote, the Wal-Mart women were obliged to offer “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.” Wal-Mart, in fact, has a national policy against sex bias, the opinion noted, and the statistical evidence that the women’s lawyers had offered did not establish that the “corporate culture” implementing that policy translates such a valid policy into illegal discrimination down at the retail store level.

The assessments of alleged bias at the local level, made by the Wal-Mart women’s expert statistician, the Court said, were “worlds away from ‘significant proof’ that Wal-Mart operated under a general policy of discrimination.” And the company’s announced — and enforced — policy against sex bias together with decentralizing actual workplace decisions on pay and promotions “is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business.”

While Justice Scalia noted that the Court has allowed workplace bias lawsuits where lower-level supervisors used their discretion to engage in biased practices, falling harder on women or minorities, the existence of that kind of case “does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common.” The Wal-Mart women, he summed up, “have not identified a common mode of exercising discretion that pervades the entire company.”

The opinion added: “In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” The evidence offered “falls well short” of proving that, it said.

The overall problem with this lawsuit, Scalia said, quoting the comment of a lower-court judge in the case, was that the Wal-Mart women “have little in common but their sex and this lawsuit.”

The part of the ruling dealing with the commonality requirement was joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice Ruth Bader Ginsburg dissented on that facet of the ruling, joined by Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor.

The dissenters argued that the evidence the women’s lawyers had offered “suggests that gender bias suffused Wal-Mart’s company culture.” Their evidence also indicated that the differences in pay and promotions between women and men workers could only be explained by bias, not “neutral variables,” the dissenters added, leaving the clear impression that the dissenters agreed with that assessment.

Repeatedly, the dissenting opinion offered positive reactions to the women’s claims of how the Wal-Mart “corporate culture” actually worked to bolster discretion at the store level, with that discretion exercised predominantly by men influenced by a culture of discrimination.

The part of the ruling that had the support of all of the Justices declared that the section of Rule 23 that permits class-action requests for injunctions or declaratory rulings does not generally allow claims for money payments, such as backpay in a workplace bias case, unless that kind of remedy is merely incidental to the type of court orders that section authorizes.

Because of the Court’s ruling on the “commonality” question, closing the class-action claim against Wal-Mart, this second part of the decision had little practical impact other than clarifying when a class-action lawsuit could pursue a money remedy. The dissenters said they would have left the Wal-Mart women with a further opportunity to try a different section of Rule 23 for their backpay claim, but the majority had scuttled that by ending the class-action case altogether.

The constitutional overtones that seemed to lie behind some of Justice Scalia’s observations about the need to ensure that companies sued in class-action cases get a full opportunity to defend themselves by challenging each class member’s claims may figure in what the Court now does with another class-action case on its docket. That is the case of Philip Morris USA, Inc., et al., v. Jackson (docket 10-735). That is a case that turns entirely on constitutional questions — a massive class-action lawsuit against the nation’s major cigarette companies in Louisiana state court that resulted in an award of $270 million to a class of former smokers.

Justice Scalia stayed that ruling last September. The Court has been holding the case until it decided the Wal-Mart case. It now is expected to take action on that case; its options include granting the case, or sending it back to Louisiana courts to consider the impact of the Wal-Mart decision. Since the Wal-Mart decision turns mainly upon the meaning of a federal court rule (Rule 23) that does not apply to class-action lawsuits in state court, it is unclear how much specific guidance state courts could take from Monday’s decision.

The Louisiana case is likely to go before the Justices in a private Conference before they recess for the summer.

Another pending class-action case that the Court seems to have been holding is Beer, et al., v. U.S. (docket 09-1395), involving a claim by seven federal judges that challenged Congress’s block of cost-of-living pay raises for judges on the U.S. bench. That case, too, presumably will be acted upon shortly.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.